The administration of President Barack Obama is considering the creation of a national security court to try cases in which there is enough reliable intelligence to hold a foreign terrorism suspect in preventive detention, but not enough to bring a case in federal court or even through military commissions.
Human rights advocates and legal experts confirm that the new institution is among the options being considered by the Justice Department Task Force Obama created to determine how best to adjudicate the cases of suspected terrorists held at the U.S. naval base at Guantanamo Bay, Cuba. Obama has pledged to close that detention center by January 2010.
But the idea of establishing a National Security Court is attracting widespread criticism because it would mean keeping some terrorism suspects on U.S. soil indefinitely.
While the idea of such a new court system is generally supported by conservatives, that support is far from universal.
Sen. Lindsey Graham, a conservative Republican from South Carolina and a military judge in the Air Force Reserve, notes the legal difficulties that would arise from a National Security Court. "How do you hold someone in prison without a trial indefinitely?" he asked.
Another prominent conservative, Bruce Fein, who served in the Justice Department under President Ronald Reagan, described the issues surrounding detention and trial of alleged terrorists as "the most important the Republic has confronted since the Civil War as to what America means. It should not mean Empire!"
Fein believes the regular Federal court system should be the venue for terrorism trials.
He told us, "Shortly after 9/11, Michael Chertoff, then head of the Criminal Division of DOJ, testified before the Senate Judiciary Committee that Article III federal courts have performed brilliantly in the trials of terrorism cases assisted by the Classified Information Procedures Act of 1980 (CIPA)."
CIPA enables trials without disclosing national security secrets where a summary of the incriminating evidence is sufficient to enable the accused to conduct a fair defense.
Fein says Chertoff told the Senate Judiciary Committee that "the history of this Government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information."
He said the Obama administration "has failed to adduce a crumb of evidence, experience, or intuition suggesting that a national security court is necessary to secure justice -- unless the term is meant to include convicting the innocent like a page from Orwell's 1984!"
Since 9/11, Federal courts have tried approximately 120 terror-related cases, with defendants including some considered among the most dangerous.
Prof. Francis Boyle of the University of Illinois law school agrees. He told us, "The proposal to establish a 'National Security Court' here in the United States would constitute a U.S. Constitutional abomination."
"It would simply import the Gitmo Kangaroo Courts into the United States itself and purport to render these U.S. domestic kangaroo national security courts part of our longstanding constitutional system for the administration of justice going back to the foundation of our Republic," he said, adding,
"U.S. domestic kangaroo National Security Courts would debase and degrade and corrupt and ultimately co-opt America's Article III Federal Court system, up to and including the U.S. Supreme Court. They would be one step removed from establishing a police state, which is really what their proponents have in mind," he said.
A similar view is expressed by Chip Pitts, president of the Board of Directors of the Bill of Rights Defense Committee. He told us,
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